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Denying a petition filed by Club Texting, Inc., the Federal Communications Commission said it will keep its current liability analysis under the Telephone Consumer Protection Act, which separates text broadcasting from fax broadcasting.

Regulations promulgated by the FCC provide that a fax broadcaster will be liable as the "sender" of an unlawful fax under the TCPA only "if it demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile transmission."

Club Texting, Inc., provides a software platform for companies to contact a target audience via text message. In 2009 the company filed a petition with the FCC for a declaratory ruling asking the Commission to clarify that text broadcasters like itself should be treated consistently with fax broadcasters with regard to liability under the TCPA.

Aside from the technological characteristics of the medium, companies like Club Texting are identical to fax broadcasters, the petitioner argued, and liability should attach only if a text broadcaster "demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such transactions."

Clarifying the liability standard would promote compliance, the company added, because its clients are in the best position to ensure that recipients have consented to receive the text messages.

The Commission requested public comment on the issues and received six responses, the majority of which opposed granting the requested declaratory ruling, the FCC said. Concerns were raised about the difficulty identifying the third-party clients of text broadcasters, as well as the fact that the TCPA does not mandate an opt-out notice or sender identification on autodialed text messages. Commenters contended that if the text broadcaster cannot be held liable, then wireless consumers could be left without the ability to enforce the TCPA requirements against any responsible party.

While the petition was still pending, however, the FCC issued its long-awaited omnibus Declaratory Ruling and Order last July, addressing several issues under the TCPA, including liability for text broadcasters.

"Specifically, a 'direct connection between a person or entity and the making of a call' can include 'tak[ing] the steps necessary to physically place a telephone call.' It also can include being 'so involved in the placing of a specific telephone call' as to be deemed to have initiated it," the Commission wrote in the July order. "Thus, we look to the totality of the facts and circumstances surrounding the placing of a particular call to determine: 1) who took the steps necessary to physically place the call; and 2) whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA. … Similarly, whether a person who offers a calling platform service for the use of others has knowingly allowed its client(s) to use that platform for unlawful purposes may also be a factor in determining whether the platform provider is so involved in placing the calls as to be deemed to have initiated them."

The omnibus order settled the issue, the FCC wrote. "[T]he Commission has concluded that the determination as to who is liable as the person who 'makes' or 'initiates' a particular robocall (including an autodialed text message) requires a fact-based determination governed by factors such as which party takes the 'steps necessary to physically place' that call and the extent and nature of involvement by others, including the provider of the calling platform used to make the call," the FCC explained.

Confirming that the July order is the applicable standard for determining text broadcaster liability for TCPA violations, the FCC denied Club Texting's petition.

Why it matters: The Commission has made clear that text broadcasters are subject to a different standard of liability than fax broadcasters under the TCPA, and that the totality of facts analysis adopted in the FCC's July 2015 Declaratory Ruling and Order will be the standard used to determine a text broadcaster's involvement in and potential liability for a wrongful text campaign. The denial of Club Texting's petition did not elaborate on the text broadcasting standard beyond the July 2015 order or provide any additional guidance to businesses.

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